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Express Terms Notes

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This is an extract of our Express Terms document, which we sell as part of our Contract Notes collection written by the top tier of Griffith University students.

The following is a more accessble plain text extract of the PDF sample above, taken from our Contract Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

EXPRESS TERMS
*
* General Rule
o If the contract is in writing and is signed by both parties, whatever
is in the contract are the terms that can be legally enforced
SS? L'Estrange v Graucob * "this agreement contains all the terms and
conditions under which I agree to purchase the
machine specified above, and any express or implied
condition, statement or warranty statutory or
otherwise not stated herein is hereby excluded"
o bound by this fine print clause as it was in the
original contract - NO BREACH OF
WARRANTY
o If a document contains contractual terms, and is signed, if there is
no fraud or misrepresentation, it is enforceable even if they have
read it in the document or not
SS? Toll (FGCT) v Alphapharm
EXCEPTIONS:
o Where the document signed is not contractual in nature
SS? Person who signs doesn't realise it is a contract et * Curtis v Chemical Cleaning and Dyeing Co * DJ Hill v Walter H Wright
o Contents are misrepresented * Curtis v Chemical Cleaning and Dyeing Co
o Plea of non est factum (if you signed a contract by mistake - did not
have the capacity to enter into an agreement) * Petellin v Cullen Incorporating Written Terms: * Terms on a sign, docket, ticket etc cannot be part of a contract unless the
other party is given reasonable notice of the incorporated term
o Balmain New Ferry Co v Robertson * Notice must be given before or at the time of entering into the contract
o Oceanic Sun Line Shipping Co v Fay
o Olley v Marlborough Court Ltd [1949] 1 KB 532
o Baltic Shipping Company v Dillon
SS? In this case, Mrs Dillon was not bound by the conditions
that limited the liability of the company as she did not have
sufficient notice



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*
* * * * A party must have either knowledge or reasonable notice of the terms is
he to be bound
o Causer v Brown [1952] VLR 1
If the document is one that a reasonable person would expect to contain
contractual terms, it is enough that the document be presented
o This will be sufficient notice
SS? Mendelssohn v Norman
What is reasonable notice will depend on the circumstances of the
particular case
The notice must be likely to come to the attention of the other party
o Thornton v Shoe Lane Parking
Unusual terms require special notice
o Interfoto Picture Library v Stiletto Visual Programs
Electronic documents and websites terms and conditions
o eBay International AG v Creative Festival Entertainment By Reference: * Smith v South Wales Switchgear Co Ltd * Thompson v London, Midland & Scottish Railway Co
By Course of Dealing: * Where the parties have concluded several contracts on similar terms
agreed in the same manner, this may have the effect of incorporating the
terms into a subsequent contract between them
o SHOW:
SS? A consistent and sufficiently long course of dealing
SS? Course of dealing must be regular and uniform
SS? Evidence of assent to the terms (no objection) * Balmain New Ferry Co v Robertson
o Regular traveller - knew the Terms and
Conditions * Henry Kendall and Sons v William Lillico and Sons Ltd













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